H4 I94 Expired when H4 to H1 COS is pending with USCIS

[gkumardd]

Hello All,

I am in a strange situation, and would help if you can give your guidance / procedure based on your experience / understanding.

My H1 Visa and my Wife's H4 visa - valid till 31 - OCT- 2015

Both of our I 94 - valid till 14-JULY-2014 (expired yesterday)

My H1 is in Extension now - and is already applied.

My wife's case is in question now, and need help.

My wife has a H1B (fresh) approved in 2013 quota as consular processing. But this is not stamped yet.

Now, a new employer for he has filed her transfer (w/o cap exempt) and also H1 to H4 COS - which got RFE yesterday.

Questions:

1. Is her stay in H4 now legal? Though her H4 I94 expired, her COS is under processing to H1B.

2. What happens if the H1 COS is denied? Can we apply for H4 Extension then, but her H4 I94 is already expired. Or, go out of US and return back sicne she has a valid visa on the passport valid till 31-OCT-2015. Just go to Jamaica and return back the same day?

Please let me know your opinions and experiences in this situation.



Thanks

[raghvi]

Hello All,

I am in a strange situation, and would help if you can give your guidance / procedure based on your experience / understanding.

My H1 Visa and my Wife's H4 visa - valid till 31 - OCT- 2015

Both of our I 94 - valid till 14-JULY-2014 (expired yesterday)

My H1 is in Extension now - and is already applied.

My wife's case is in question now, and need help.

My wife has a H1B (fresh) approved in 2013 quota as consular processing. But this is not stamped yet.

Now, a new employer for he has filed her transfer (w/o cap exempt) and also H1 to H4 COS - which got RFE yesterday.

Questions:

1. Is her stay in H4 now legal? Though her H4 I94 expired, her COS is under processing to H1B.

2. What happens if the H1 COS is denied? Can we apply for H4 Extension then, but her H4 I94 is already expired. Or, go out of US and return back sicne she has a valid visa on the passport valid till 31-OCT-2015. Just go to Jamaica and return back the same day?

Please let me know your opinions and experiences in this situation.



Thanks

1. Without an I-94 and without an extension pending she is pretty much out of status, COS processing is not considered a valid status.
2. It most likely will be denied as she is not in valid status. She would have to leave US and re enter on her H4, and then re apply COS with new I-94.

This is my opinion not legal advice.